Burke on Consent Searches

Ok, it is not me, but Alafair S. Burke (Hofstra University – Maurice A. Deane School of Law), who has posted Consent Searches and Fourth Amendment Reasonableness (67 Fla. L. Rev. 509 (2015)) on SSRN.

Here is the abstract:

This Article builds on a growing body of scholarship discussing the role of reasonableness in consent-search doctrine. Although the language of “voluntary consent” implies a subjective inquiry into the state of mind of the person granting consent, the U.S. Supreme Court has repeatedly injected an objective standard of reasonableness into its analysis of a citizen’s consent. Several scholars have characterized the Court’s consent jurisprudence as focusing not on true voluntariness but on the reasonableness of police conduct, which they argue is appropriate because the touchstone of the Fourth Amendment is “reasonableness.” While the renewed scholarly focus on the role of reasonableness in the Court’s consent jurisprudence is helpful in explaining the puzzling disconnect between language and doctrine, much of this current emphasis has been distorted by the dichotomy between coercion and voluntariness: Did police use (unreasonable) coercive tactics that would override a (reasonable) person’s free will? However, the Fourth Amendment’s default concept of reasonableness is based not on coercion or volition but on its requirement of a warrant based on probable cause. Typically when the Court recognizes an exception to the default rule, it grounds that exception in a concept of reasonableness that requires a weighing of the governmental interests served by the warrantless conduct against the level of the intrusion on affected Fourth Amendment interests: liberty and privacy. Because the Court has relied on the myth of voluntary consent as a proxy for the warrant and probable cause requirements that normally define “reasonableness” in the Fourth Amendment context, the Court has bypassed the usual substitute proxy for Fourth Amendment reasonableness: an express weighing of the governmental and citizen interests at stake.

This Article engages in the reasonableness inquiry that the Supreme Court has avoided. Drawing on the Court’s approach to reasonableness in other Fourth Amendment contexts, this Article first looks to the concept of “macro reasonableness” to argue that the Court has overestimated the value of consensual searches to law enforcement and underestimated their effect on privacy. While the Court has emphasized the value of consensual searches yielding incriminatory evidence that might go undetected absent the consent-search doctrine, many consent searches serve no government interests at all. Meanwhile the pervasiveness of the practice imposes tremendous costs to privacy. This Article then seeks to reshape the consent-search exception, using a requirement of “micro reasonableness,” to make the doctrine of consent more reflective of Fourth Amendment reasonableness. Under this requirement, courts would examine not only the voluntariness of the consent underlying the search, but also the government’s reasons for requesting the consent and the scope of the consent requested.

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